By Joe Forward, Legal Writer, State Bar of Wisconsin

June 17, 2010 – The Wisconsin Supreme Court on June 15 clarified the procedure and standard for reviewing discharge petitions of those civilly committed for sexual violence.

In State v. Arends, 2008AP000052 (June 15, 2010) the supreme court interpreted procedures under Wis. Stat. section 980.09 – discharge petitions for sexually violent person commitments – which was amended in 2006.  

The petitioner in the case, Daniel Arends, was civilly committed as a sexually violent person in 2005 and petitioned for discharge in 2007. The circuit court denied the petition.

The court – in an opinion written by Justice Michael J. Gableman  – concluded that section 980.09 “requires a circuit court to follow a two-step process in determining whether to hold a discharge hearing.” The circuit court – which denied Arends’ petition without a hearing after reviewing documents outside the petition – did not follow this procedure, the court found.

The first step – section 980.09(1)

Under section 980.09(1), a “court shall deny the petition … without a hearing unless the petition alleges facts from which the court or jury may conclude the person’s condition has changed” since the civil commitment, the court explained.

The court noted that section 980.09(1) “provides for a very limited review aimed at ensuring the petition is sufficient–that is, whether relief for the petitioner is possible based on the factual allegations in the petition” and documents attached to it.

This standard, the court noted, “is similar to that used in civil cases to decide a motion to dismiss for failure to state a claim upon which relief can be granted.” The purpose of the first step is to “weed out meritless and unsupported petitions,” the court wrote.

The circuit court denied the petition after reviewing evidence outside the petition, but did not state whether it was denying the petition under section 980.09(1) or (2).

Because it “considered evidence outside of the petition … it appears that the circuit court’s denial was issued after a section 980.09(2) analysis,” the court wrote, but it “did not consider all of the items it was required to consider under section 980.09(2).”

The second step – section 980.09(2)

Under 980.09(2), court may, at its discretion, hold a hearing to determine whether the a petitioner is entitled to a formal discharge hearing under section 980.09(3). That is, a court may use a section 980.09(2) hearing to aid the determination of whether the petition and supporting materials "contain any facts from which a reasonable trier of fact could conclude that the petitioner" has changed and no longer meets the criteria to be committed.

In a 980.09(2) hearing, the court must consider “any current or past reports filed under s. 980.07, relevant facts in the petition and in the state’s written response, arguments of counsel, and any supporting documentation provided by the person or the state.”

Here, the court explained, the circuit court did not consider all of the items it was required to consider under section 980.09(2).

Additionally, the state argued that removal of the words “probable cause” from the old statute gives courts more discretion to make limited credibility determinations in a section 980.09(2) hearing. Under the amended provision, the state argued, the petitioner must prove by a preponderance of the evidence that he has changed.

The court rejected the state’s argument. Under section 980.09(2), the court explained, the circuit court must determine whether a court or jury could find in the petitioners favor based on reasonably reliable facts. It does not mandate a standard beyond that.

The standard, the court wrote, “is not whether the evidence more heavily favors the petitioner, but whether the enumerated items contain facts" that allow a fact-finder to grant relief. Contrary to the state’s belief, the burden does not shift to the petitioner to make the case under 980.09(2).

Justice David Prosser filed a dissenting opinion.